Colon v. Dillard University

Filing 25

ORDER granting 20 Motion to Dismiss for State Law Claims. Signed by Judge Mary Ann Vial Lemmon on 8/31/16. (cbn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DR. ALAN COLÓN

CIVIL ACTION

VERSUS

NO: 16-1819

DILLARD UNIVERSITY

SECTION: "S" (4)
ORDER AND REASONS

IT IS HEREBY ORDERED that Dillard University's Motion to Partially Dismiss Plaintiff's
State Law Claims Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. #20) is
GRANTED, and plaintiff's claims brought under the Louisiana Employment Discrimination Law
("LEDL"), specifically, La. Rev. Stat. § 23:301, et seq., La. Rev. Stat. § 23:312, et seq., La. Rev.
Stat. § 23:332, et seq., and La. Rev. Stat. § 51:2231, et seq., are DISMISSED WITH PREJUDICE.
BACKGROUND
This matter is before the court on a motion to dismiss filed by defendant, Dillard University.
Dillard argues that plaintiff's claims brought under the Louisiana Employment Discrimination Law
("LEDL"), specifically, La. Rev. Stat. § 23:301, et seq., La. Rev. Stat. § 23:312, et seq., La. Rev.
Stat. § 23:332, et seq., and La. Rev. Stat. § 51:2231, et seq., should be dismissed because they are
prescribed.
Plaintiff, Alan Colón, is an African-American man who holds a Ph.D. in higher education
administration and curriculum and teacher education. In 1998, Dillard hired him to teach African
World Studies, and Dillard's Board of Trustees awarded him tenure on March 20, 1999. On May
25, 2012, Phillis W. Dawkins, Dillard's Provost and Senior Vice President for Academic Affairs,
sent correspondence to Colón informing him that his position and the related "program,
concentration or minor" were being eliminated effective for the 2012-2013 academic year, and that
he should consider the layoff to be permanent.

On March 7, 2013, Colón filed a complaint with the Equal Employment Opportunity
Commission ("EEOC"). The EEOC complaint states that Colón believes that he "and similarly
situated black males, and individuals over age 40, as a class, have been discriminated against based
on race, black; gender, male, and age, in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended and the Age Discrimination in Employment Act (ADEA)." Colón alleges that he
received a right to sue letter from the EEOC on October 29, 2015.
On January 25, 2016, Colón filed his original petition against Dillard in the Civil District
Court for the Parish of Orleans, State of Louisiana, alleging claims of age and racial discrimination.
Colón alleges that Dillard continues to offer courses that he is qualified to teach and that he was
teaching prior to his termination, and that Dillard has hired younger, less-qualified, non-tenured
faculty and/or adjunct professors who may have been outside of his protected racial class to teach
those courses. Colón states that his claims arise under Louisiana law, but he also alleges that he
timely filed a charge of discrimination against Dillard with the EEOC, and filed his petition within
90 days after receiving the right to sue letter.
On March 3, 2016, Dillard removed Colón's suit to the United States District Court for the
Eastern District of Louisiana alleging federal question subject matter jurisdiction under 28 U.S.C.
§ 1331. In its Notice of Removal, Dillard stated that Colón's petition alleges violations of the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq., along with claims under Louisiana law. Dillard
stated that the petition's reference to Colón's EEOC complaint invokes this court's subject matter
jurisdiction because it asserts a federal cause of action. On March 8, 2016, Colón filed an amended
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complaint that alleged that this court has subject matter jurisdiction under § 1331, and explicitly sets
forth claims under the ADEA and Title VII, as well as Louisiana law.
Thereafter, Dillard filed the instant motion to dismiss arguing that Colón's Louisiana law
discrimination claims are prescribed. Colón does not oppose the motion with respect to his claims
for race and sex discrimination brought under Louisiana law, but he argues that discovery is
necessary to determine whether his Louisiana law claim for age discrimination is prescribed.
ANALYSIS
I.

Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a motion to dismiss a

complaint for failure to state a claim upon which relief can be granted. To survive a Rule 12(b)(6)
motion to dismiss, enough facts to state a claim for relief that is plausible on its face must be
pleaded. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl.
v. Twombly, 127 S.Ct. 1955, 1964-65 & 1973 n. 14 (2007)). A claim is plausible on its face when
the plaintiff pleads facts from which the court can “draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “Factual
allegations must be enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 127 S.Ct. at
1965. The court “must accept all well-pleaded facts as true and view them in the light most
favorable to the non-moving party.” In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir.
2008). However, the court need not accept legal conclusions couched as factual allegations as true.
Iqbal, 129 S.Ct. at 1949-50.

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II.

Prescription
The prescriptive period for employment discrimination claims brought under Louisiana law

is codified at La. Rev. Stat. § 23:303(D), which provides that:
[a]ny cause of action provided in this Chapter shall be subject to a
prescriptive period of one year. However, this one-year period shall
be suspended during the pendency of any administrative review or
investigation of the claim conducted by the federal Equal
Employment Opportunity Commission or the Louisiana Commission
on Human Rights. No suspension authorized pursuant to this
Subsection of this one-year prescriptive period shall last longer than
six months.
La. Rev. Stat. § 23:303(D); Eastin v. Entergy Corp., 865 So.2d 49, 53 (La. 2004). This one-year
prescriptive period begins to run from the date that the injury or damage is sustained which is "the
earlier of the date the employee is informed of his termination or his actual separation from
employment." Eastin, 865 So.2d at 53-54.
Colón's employment with Dillard ended on May 25, 2012. Pursuant to La. Rev. Stat. §
23:303(D), Colón had one year from that date within which to file his claim, that is, by May 25,
2013. On March 7, 2013, Colón filed a complaint with the EEOC, which suspended prescription
on his claim for a period of not more than six months. See La. Rev. Stat. § 23:303(D). Thus, the
prescriptive period on Colón's claim was extended by six months, from May 25, 2013, to November
25, 2013. Colón did not file suit against Dillard until January 25, 2016, well beyond the one-year
prescriptive period and the six-month suspension period. Thus, Colón's claims under the Louisiana
Employment Discrimination Act are prescribed on the face of the complaint.1
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Relying on Jay v. Int'l Salt Co., 868 F.2d 179 (5th Cir. 1989), and Jupiter v. Bellsouth
Telecomm.,Inc., 1999 WL 1009829 (E.D. La. Nov. 5, 1999), Colón argues that prescription should not begin
to run on his age discrimination claim until he knew or should have known that Dillard replaced him with a
younger person because that is when the claim accrued. This jurisprudence is no longer applicable because
it pre-dates the enactment of La. Rev. Stat. § 23:303(D) and Eastin v. Entergy Corp., 865 So.2d 49, 53 (La.

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When a defendant shows that a claim is prescribed on the face of the complaint, "the plaintiff
bears the burden of proving [that] the prescriptive period has been suspended, interrupted or
renounced." Wilhike v. Polk, 999 So.2d 83 (La. Ct. App. 2008) (citing Lima v. Schmidt, 595 So.2d
624 (La. 1992)). Colón argues that the application of the contra non valentem doctrine prevents his
Louisiana law age discrimination claim from being prescribed.
Contra non valentem is a jurisprudential doctrine whereby prescription is suspended when
a person cannot file suit. Carter v. Haygood, 892 So.2d 1261, 1268 (La. 2005) (citing Frank L.
Maraist and Thomas C. Galligan, Louisiana Tort Law § 10-4(b), 22 (1996)). The Supreme Court of
Louisiana has recognized four circumstances where the doctrine of contra non valentem is applied
to suspend the running of prescription:
(1) where there was some legal cause which prevented the courts or
their officers from taking cognizance of or acting on the plaintiff's
action;
(2) where there was some condition coupled with the contract or
connected with the proceedings which prevented the creditor from
suing or acting;
(3) where the debtor himself has done some act effectually to prevent
the creditor from availing himself of his cause of action; or
(4) where the cause of action is neither known or reasonably
knowable by the plaintiff even though plaintiff's ignorance is not
induced by the defendant.
Marin v. Exxon Mobil Corp., 48 So.3d 234, 245 (La. 2010). Contra non valentem is only to be
applied in exceptional circumstances and “will not exempt the plaintiff's claim from the running of
prescription if his ignorance is attributable to his own willfulness or neglect; that is, a plaintiff will
2004), in which the Supreme Court of Louisiana interpreted § 23:303(D) to mean that prescription on an
employment discrimination claim begins to run at the earlier of the date the employee is informed of his
termination or his actual separation from employment.

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be deemed to know what he could by reasonable diligence have learned.” Id. at 245-46. “Further,
‘prescription runs from the date on which [a plaintiff] first suffered actual and appreciable damage,
... even though he may thereafter come to a more precise realization of the damages he has already
incurred or incur further damages as a result of the completed tortious act.’" Id. at 246.
Colón argues that fourth circumstance applies, that the cause of action was neither known
nor reasonably knowable to him until he knew that he was replaced with a younger person. Colón
relies on Bourdais v. New Orleans City, 485 F.3d 294 (5th Cir. 2007), to support this argument. The
Bourdais plaintiffs brought claims against the City of New Orleans for discriminatory practices in
the hiring of firefighters for the New Orleans Fire Department ("NOFD") under the Equal Protection
Clause of the Fourteenth Amendment, 42 U.S.C. §§ 1981, 1983, 1985, and corresponding state
statutes. Id. at 298. In 1991, the NOFD administered a written aptitude test to applicants seeking
to be come firefighters. Id. at 297. The applicants who received a passing score and passed other
screenings were placed on a register of recruits eligible for hire. Id. The NOFD hired seven classes
of firefighters from the 1991 register. Id. Prior to 1991, the NOFD hired applicants from the
eligibility list from the top down, beginning with the highest test score. Id. With the 1991 register,
the NOFD adopted a policy whereby it would hire one African America for every Caucasian, which
resulted in African Americans getting hired before Caucasians who had higher test scores. Id. In
1996, two lawsuits were filed by people who were on the register but alleged they were not hired
due to the discriminatory practice. Thereafter, the Bourdais plaintiffs, who were hired in classes two
through seven of the 1991 register, filed their suit seeking back pay and lost benefits claiming that
their hiring was delayed due to the discriminatory practice. Id. The City argued that their claims
were time-barred. Id. The United States Court of Appeals for the Fifth Circuit held that the contra

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non valentem doctrine applied to suspend the limitations period because the Bourdais plaintiffs, who
were hired, could not have known that they were discriminated against until the NOFD's actions
were uncovered in the other litigation. Id. at 298-99.
Bourdais is distinguishable from the case at bar. First, the Bourdais plaintiffs filed claims
for violations of the Equal Protection Clause of the Fourteenth Amendment to which the prescriptive
period of one year stated in La. Civ. Code art 3492 applies. Id. at 298. Colón's claim arises under
the Louisiana age discrimination law, which has its own prescriptive period set forth in La. Rev.
Stat. § 23:303(D). Also, the Bourdais plaintiffs' claims involved delayed hiring whereas Colón's
claim is that he was fired for a discriminatory purpose. In Eastin, 865 So.2d at 56-57, the Supreme
Court of Louisiana found that the contra non valentem doctrine did not apply when plaintiffs who
claimed they were terminated in violation of Louisiana's anti-discrimination laws did not investigate
their terminations to determine whether there was an unlawful reason for their terminations because
"learning of one's own termination does give rise to the knowledge of a cause of action and starts
the proverbial clock's ticking." Id. at 56. Colón is in the same position as the Eastin plaintiffs. He
knew that he had a cause of action when he was fired. Indeed, he filed an EEOC claim on March
7, 2013, before prescription ran, claiming that he was the victim of age discrimination. Therefore,
Colón knew about the cause of action before the limitations period ran, and the contra non valentem
doctrine does not apply. Dillard's motion to dismiss is GRANTED, and Colón's claims brought
under the LEDL are DISMISSED WITH PREJUDICE.

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CONCLUSION
IT IS HEREBY ORDERED that Dillard University's Motion to Partially Dismiss
Plaintiff's State Law Claims Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc.
#20) is GRANTED, and plaintiff's claims brought under the Louisiana Employment Discrimination
Law ("LEDL"), specifically, La. Rev. Stat. § 23:301, et seq., La. Rev. Stat. § 23:312, et seq., La.
Rev. Stat. § 23:332, et seq., and La. Rev. Stat. § 51:2231, et seq., are DISMISSED WITH
PREJUDICE.

New Orleans, Louisiana, this _____ day of August, 2016.

____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

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